The Trial of Aaron Burr

by Joseph P. Brady

But of the defense facile princeps was Burr himself. He was keenly alive to every proceeding, and while the burden fell upon others, no move was made, or point conceded, without his sanction. Mr. Robertson, the reporter of the trial, says: “Among these stood Aaron Burr, proudly pre-eminent in point of intelligence to his brethern of the bar, who had been vice-president of the United States, and now accused of the highest and darkest crime in the criminal code. Standing before the Supreme tribunal of his country, and with the eyes of the nation upon him, he was, in the opinion of many, already condemned. He had the talent and tact, and the resources of the Government to contend against, and every faculty of his mind was exerted in his own defense. The magnitude of the charge, the number of persons involved, the former high standing and extraordinary fortunes of the accused, had excited an interest in the community such as never before had been known.”

WARRANT FOR ARREST OF BURR

Facing p. 20

The Marshal had summoned for service on the grand jury the most intelligent and representative citizens of the Commonwealth. Prominent among them was William B. Giles. He had served in both branches of the Legislature of Virginia; had been Governor of the State of Virginia; and representative and senator in the Congress of the United States. Senator Giles was a partisan of Jefferson, a member of what John Randolph called “the President’s back-stair cabinet.” He was the leader of the republicans in the Senate, and had been foremost in the assaults on the “last stronghold of Federalism—the Judiciary.”

When Senator Giles was called on the voir dire he was challenged personally by Burr. Burr claimed the same right of challenging grand jurors for favor that he had of challenging petit jurors, and was sustained in his position by the Chief Justice. His objection to Giles was that, on occasions in the Senate, he had pronounced his opinion on certain documents sent to that body by President Jefferson attributing to Burr treasonable designs, and upon such information advocating the suspension of the writ of habeas corpus. He stated that he could produce evidence, if necessary, of public utterances of Senator Giles confirming these views. Senator Giles was stricken from the panel.

Another former United States Senator, and afterwards Governor of Virginia, summoned as a grand juror, was Wilson Cary Nicholas. He was a personal enemy of Burr, and when his name was called Burr challenged him. Colonel Nicholas had served three years in the Senate when Burr presided over it, and had taken a very decided part in favor of the election of his successor. He had freely expressed his suspicions, both in correspondence and publicly, of Colonel Burr’s probable objects in the west. He was rejected.

Some of the other distinguished citizens of Virginia summoned by the Marshal, and who served on the grand jury, were Littleton Waller Tazewell and James Pleasants, both afterwards United States Senators and Governors of Virginia; Joseph C. Cabell, one of the founders with Jefferson of the University of Virginia; William Daniel, father of the late Judge William Daniel of the Court of Appeals of Virginia, and grandfather of John Warwick Daniel, the lamented senator from Virginia; and Colonel James Barbour, afterwards Governor of Virginia, United States Senator, Secretary of War under John Quincy Adams, and Minister to England.

The general belief in the guilt of the accused was manifested at the very beginning of the trial. The proclamations and the special messages of President Jefferson to Congress, and the depositions of Generals Eaton and Wilkinson had had their effect on the public mind. A number of citizens summoned for service on the grand jury frankly admitted they had prejudged the case, and in consequence of such disqualifications and excuses the original panel was reduced to fourteen.

The court, being now without a legal grand jury in attendance, directed the Marshal to summon from the bystanders two additional persons. The Marshal summoned and returned John Randolph and William Foushee. Mr. Randolph was named as foreman, but upon being asked to take the oath, requested to be excused from serving. He had formed an opinion concerning the nature and tendency of certain transactions imputed to Mr. Burr. He had a strong prepossession, but thought he could divest himself of it upon evidence. Mr. Burr observed that he was afraid they would be unable to find any man without this prepossession. “The rule is,” said the Chief Justice, “that a man must not only have formed, but declared an opinion, in order to exclude him from serving on the jury.” Mr. Randolph replied that he had no recollection of having declared one, and he was thereupon sworn as foreman.